Hawai’i implied consent law is not unconstitutional under McNeely

The Hawai’i implied consent law is not unconstitutional under McNeely. State v. Won, 2014 Haw. App. LEXIS 147 (March 28, 2014):

McNeely addressed the narrow question of whether the dissipation of alcohol in the bloodstream establishes a per se exigent-circumstances exception to the warrant requirement for nonconsensual blood draws for OVUII arrests. McNeely did not address other potential exceptions to the warrant requirement, the Fourth Amendment implications of breath tests, the validity of implied consent statutes, or the validity of breath tests conducted pursuant to such statutes.

Here, Won agreed to submit to a breath test pursuant to Hawai’i’s implied consent statute. Unlike McNeely, Won was not subjected to a compelled nonconsensual blood draw. A breath test is “less intrusive” than a blood test. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 625 (1989). “Unlike blood tests, breath tests do not require piercing the skin and may be conducted safely outside a hospital environment and with a minimum of inconvenience or embarrassment. Further, breath tests reveal the level of alcohol in the employee’s bloodstream and nothing more.” Id.

A Hawai’i driver, like Won, who is arrested for OVUII based on alcohol consumption has the option of electing to take a breath test, a blood test, or both. HRS § 291E-11(c). Because a Hawai’i driver can chose to take the less intrusive breath test, and because in this case Won chose to take a breath test, we only address the constitutionality of HRS § 291E-68 as it applies to breath tests under the implied consent statutory scheme in a typical OVUII case. We conclude that Won has failed to meet his heavy burden of showing that McNeely renders HRS § 291E-68 unconstitutional. See Pray, 75 Haw. at 340, 861 P.2d at 727.